December 11, 2008
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
RODNEY L. MCRAE, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, 04-07-0746-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2008
Before Judges Winkelstein and Fuentes.
A Union County grand jury indicted defendant, Rodney McRae, charging him with the following offenses: third-degree possession of heroin and/or cocaine, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of heroin and/or cocaine with the intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); and third-degree possession of heroin and/or cocaine with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three). A jury convicted defendant of all counts. After denying the State's motion for a mandatory extended prison term pursuant to N.J.S.A. 2C:43-6f, the court merged counts one and two with count three, and on the latter count, imposed a five-year prison term with a three-year period of parole ineligibility.
Defendant appealed from his conviction, raising the following legal arguments:
THE TRIAL COURT'S DECISION TO DENY THE STATE'S APPLICATION FOR AN EXTENDED TERM SENTENCE AS NOT TIMELY FILED SHOULD BE UPHELD.
DURING HIS SUMMATION, THE PROSECUTOR COMMITTED MISCONDUCT AND DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL UNDER THE 14TH AMENDMENT AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION (Not raised below).
THE TRIAL COURT ERRED IN ALLOWING THE EXPERT TO TESTIFY AND ANSWER HYPOTHETICAL QUESTIONS BECAUSE THE TESTMIONY DID NOT ASSIST THE JURY IN UNDERSTANDING THE FACTS AND WAS UNDULY PREJUDICIAL (Not raised below).
The State appealed from the trial court's denial of its motion for an extended term.
We reject defendant's arguments and affirm his conviction. We reverse the trial court's order denying the State's motion for an extended term and remand for resentencing.
On April 25, 2004, patrolman Todd Kelly and his partner parked their unmarked police vehicle on the 200 block of Bond Street in Elizabeth, facing west toward the intersection of Third and Bond, to conduct surveillance. This intersection is within 1000 feet of Saint Patrick's High School.
Officer Kelly observed two men standing at the northeast corner of the intersection. He recognized one of the men as Kevin Hills, but he did not recognize the second man. Soon, a third man, later identified as Maurice Paterson, joined the two men, had a brief conversation with them, and then walked away. Next, a Hispanic male joined the two men, and another individual, later identified as defendant, approached the men. After a discussion, the men crossed the street and walked toward a vacant building. Hills stood in the center of the intersection, looking up and down the street, and then motioned to defendant who was standing in front of the vacant building. Defendant approached one of the building's windows, reached on top of the window ledge, and removed something. According to Kelly, defendant "appeared to manipulate, something" and then placed the item back on top of the window ledge.
Defendant returned to the area where the Hispanic male was standing and handed him something from his closed hand. In return, the man handed defendant something from his closed hand. The Hispanic male then left the scene; as defendant walked back across the intersection, he appeared to be counting paper money. Kelly saw defendant fold the money and place it into his front right pants pocket.
When police backup arrived, the officers arrested Hills and defendant, finding fifteen dollars in defendant's front right pocket and approximately twenty dollars in his front left pocket. On the window ledge from which defendant had removed the item, Kelly found nine vials of cocaine and nine glassine envelopes of heroin.
At trial, Detective Christopher Gulbin of the Union County Prosecutor's Office testified as an expert in the distribution, sale, packaging, use and identification of controlled dangerous substances (CDS). He had been a detective for fifteen years, and he had participated in over 800 narcotics-related investigations and approximately 400 narcotics-related arrests. Based upon his experience and training, he was familiar with the way narcotics are packaged and sold. He had witnessed street level narcotics distribution "[w]ell over 50 to 100 times," and regularly spoke with confidential sources and other members of law enforcement to obtain current information about drug trafficking trends.
After the detective was qualified as an expert, the State presented him with a hypothetical fact pattern, similar to the facts in the case, and asked him to opine whether the individual in the hypothetical possessed the drugs for personal use, for distribution, or both. The detective opined that the hypothetical individual possessed the drugs with intent to distribute. He based his opinion on eight factors: (1) the quantity of the CDS; (2) the packaging of the CDS; (3) the variety of the CDS; (4) the stash location; (5) the observations of the police officer; (6) the money seized; (7) the monetary value of the CDS; and (8) the geographical area.
Defendant testified. He claimed that on the day of the drug transaction he was walking to his aunt's house with two friends, Kevin Hills and Maurice Paterson, and while crossing the intersection of Third and Bond Streets, officers "jumped out in front of [him]," grabbed him, and handcuffed him. He denied involvement in the drug transaction.
On December 8, 2005, the jury convicted defendant. On December 14, 2005, the State applied for a mandatory extended term pursuant to N.J.S.A. 2C:43-6f. The State's application included an affidavit, but no motion. The affidavit contained the following:
On March 15, 1991, defendant was sentenced . . . for distribution of CDS, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). . . .
On July 7, 2000, defendant was sentenced . . . for possession with intent to distribute imitation CDS, in violation of N.J.S.A. 2C:35-11 (third degree). . . .
According to defendant's criminal history, he was convicted previously of possession of a controlled dangerous substance with the intent to distribute. The defendant is, therefore, a persistent offender pursuant to N.J.S.A. 2C:43-6f.
Copies of the convictions are attached.
Attached to the affidavit was a certified judgment of conviction for the 2000 conviction for possession of an imitation CDS with intent to distribute. The 1991 judgment of conviction for distribution was not attached. No dispute exists that the 1991 conviction is a predicate offense for an extended prison term, but the 2000 conviction is not.
The defense claimed that the State's application was inadequate because the State failed to file a motion, failed to attach the correct certified judgment of conviction, and the affidavit was unclear as to which offense the State was relying on as a predicate offense for the extended term. The State maintained, however, that the affidavit was sufficient, it contained the same information as would a motion, and neither the court rules nor the statute required it to attach a judgment of conviction to its application.
The trial court denied the State's application. The court relied on Rule 3:21-4(e), which requires the State to make a motion for a mandatory extended term within fourteen days of the entry of a defendant's guilty plea or of the return of the verdict. The court also found the affidavit to be insufficient in that the only judgment of conviction attached was for the 2000 conviction for an offense that was not a predicate offense warranting a mandatory extended term under the statute.
After the State filed its notice of appeal from the denial of its application for an extended term, the trial court amplified its prior oral opinion pursuant to Rule 2:5-1(b). The court reiterated its position that the affidavit, instead of a motion, was insufficient under the court rule. The court further concluded that even if an affidavit could satisfy the court rule, the affidavit failed "to satisfy the substantive requirements for the motion required by Rule 3:21-4(e)." The court reasoned as follows:
Simply put, one who seeks relief from the court must provide evidence necessary to support that application. In this case, the State failed to present evidence that would support its request that an extended term be imposed pursuant to N.J.S.A. 2C:43-6f.
When the deficiencies in its request for an extended term were noted at the sentencing, the State asked for a relaxation of the 14 day period to allow it to rely upon the Judgment of Conviction produced at the sentencing for the 15 year old conviction. No facts were presented to establish "good cause" for what would have been an extension of time approximately three months beyond the 14 day filing period set by R. 3:21-4(e).
In conclusion the State failed to file a motion for the imposition of an extended term pursuant to N.J.S.A. 2C:43-6f within the 14 day filing period required by R. 3:21-4(e) that clearly stated "the grounds upon which it is made" and which was supported by evidence warranting the imposition of the extended term. Accordingly, the request for an extended term under this statute was denied.
We first address defendant's new trial arguments. We begin with his claim that the prosecutor's conduct during summation warrants a new trial. We find no merit to this argument.
"A prosecutor may comment on the facts shown by or reasonably to be inferred from the evidence." State v. R.B., 183 N.J. 308, 330 (2005) (quoting State v. Carter, 91 N.J. 86, 125 (1982)). "Prosecutorial misconduct has been found in cases when prosecutors make statements clearly contrary to evidence that was either included or excluded at trial." State v. Jenewicz, 193 N.J. 440, 472 (2008) (citations omitted). Prosecutorial misconduct is grounds for reversal only when it is so egregious that it deprives the defendant of his right to a fair trial. State v. Neal, 361 N.J. Super. 522, 535 (App. Div. 2003).
The first remark to which defendant objects was made by the prosecutor in closing, referring to Officer Kelly's observations at the crime scene:
Now, Officer Kelly is a trained observer.
All police officers are. That's their job, to watch people. Just as you might be a stockbroker, your job is to watch trends in the market, you know just by a little blip on a screen if a stock is going to be good or bad. Or if you're a mechanic you might know if your car is clanking around and the steering wheel keeps turning a little bit to the left or right. Within seconds you would know what's wrong with that car, just as Officer Kelly knew as soon as he saw a quick transaction hand-to-hand, he knew in his mind that that's a drug transaction. He's seen it hundreds of times. That's his job.
He's a trained observer. That's what he watches for.
Defendant argues that Kelly had no special training to observe people "in a way that would be different or more enhanced" than an average lay person. He claims that characterizing Kelly's observations as a product of special training enhanced his credibility and "remov[ed] from the jury's consideration the issue of whether Officer Kelly really observed what he purported to observe." We disagree.
Officer Kelly testified that he had been a police officer for nine and one-half years and during that time he had been a part of over 5,000 drug related investigations, 2,000 drug-related arrests, and he had seen "hundreds, if not thousands" of street level drug transactions. Although Kelly did not testify that he had formal "special training" in "observation," it was a reasonable inference that at least some of his training included how to recognize a drug transaction. It was also reasonable to infer that an officer with his level of experience is adept at recognizing when a drug transaction is occurring. It was for the jury to determine, based on Kelly's testimony, what he actually observed.
The second comment defendant objects to is the following:
So if you believe the defendant, ladies and gentleman, there's a large-scale conspiracy here that involves Sergeant Kelly, Officer Mikros and three other members of the Elizabeth Police Department, and Detective Gulbin from our office, who knew nothing about this investigation until he read these reads and came up with his opinion. If you believe the defendant you're going to have to believe that there's a large-scale conspiracy to get the defendant, all indications that we've had in the testimony today, the police didn't even know who he was, or at least Sergeant Kelly or Officer Mikros never knew him, had no problems with him in the past, so they just decided to pick him [up], pin drugs on him, and also get the Prosecutor's Office involved and make up a story and come testify against him, too.
We reject defendant's claim that this statement constituted prosecutorial misconduct. The prosecutor made this remark in response to defense counsel's closing argument that the officers decided "well, it's going to be Mr. McRae who wears the drugs." The prosecutor's statement was in response to defendant's theory of the case that Officer Kelly arbitrarily decided to hold defendant accountable for these drugs. A prosecutor is entitled to respond to an issue or argument raised by defense counsel. State v. Johnson, 287 N.J. Super. 247, 266 (App. Div.), certif. denied, 144 N.J. 587 (1996). The comment did not deprive defendant of his right to a fair trial. Neal, supra, 361 N.J. Super. at 535.
The final comment defendant objects to is the prosecutor's mention of Officer Mikros, because Mikros did not testify at trial. Defendant has not shown, however, how he was prejudiced by the mention of the officer's name. The isolated references to Mikros did not deprive defendant of a fair trial.
Next we turn to whether the trial court erred by permitting Detective Gulbin to testify as an expert and answer hypothetical questions. Defendant argues that Gulbin's testimony did not assist the jury and was unduly prejudicial. We disagree.
"Admission of expert testimony on drug possession and distribution techniques is permissible when reasonably required to assist jurors in understanding subjects that are beyond the ken of an average layperson." State v. Nesbitt, 185 N.J. 504, 507 (2006) (citing State v. Odom, 116 N.J. 65, 81 (1989)). Expert testimony about drug trade practices is often necessary because jurors "normally require 'the insight of an expert to explain the significance of the properties, packaging, and value of illegal drugs.'" State v. Summers, 176 N.J. 306, 312 (2003) (quoting Odom, supra, 116 N.J. at 76).
A permissible method to elicit a narcotics expert's opinion is for the prosecutor to pose a hypothetical question mirroring the facts of the case. Id. at 314. This approach is permissible as long as the question is limited to the facts adduced at trial and the expert informs jurors of the information upon which his or her opinion is based. Ibid. The expert's response "can be 'expressed in terms of ultimate issues of fact, namely, whether drugs were possessed with the intent to distribute." Id. at 314-15 (quoting Odom, supra, 116 N.J. at 81). Nevertheless, the expert cannot express his opinion about the defendant's guilt or innocence. Ibid.
Whether an expert's testimony is admissible "rests in the trial court's sound discretion." Id. at 312. If a defendant does not object to admission of an expert's testimony at trial, we review the admission of that evidence under the plain-error standard. Id. at 316. To prevail, the defendant must demonstrate that the admission of the evidence was clearly capable of producing an unjust result. Ibid.; R. 2:10-2.
Here, after Detective Gulbin was qualified as an expert, the State posed a hypothetical fact pattern that reflected the evidence in the case, and asked him to opine whether the individual in the fact pattern possessed the drugs for personal use, with the intent to distribute, or both. Following his answer to the hypothetical question, Gulbin explained in detail the rationale for his opinion, based on eight drug-related factors. Thus, admission of this testimony was not error, much less plain error.
Finally, we turn to the State's appeal. We conclude that the trial court mistakenly exercised its discretion by denying the State's application for a mandatory extended term.
N.J.S.A. 2C:43-6f states in pertinent part:
A person convicted of manufacturing, distributing, dispensing or possessing with intent to distribute any dangerous substance or controlled substance analog under N.J.S.2C:35-5 . . . who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog, shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c. of N.J.S. 2C:43-7, notwithstanding that extended terms are ordinarily discretionary with the court.
Here, defendant was convicted of possession of CDS with the intent to distribute within 1000 feet of a school, a violation of N.J.S.A. 2C:35-7. His 1991 conviction for distribution of CDS, a violation of N.J.S.A. 2C:35-5a(1) and b(3), rendered him statutorily eligible for a mandatory extended prison term under N.J.S.A. 2C:43-6f. The question is whether the deficiencies in the State's application for an extended term support the court's decision not to impose such a term.
The Legislature intended that upon application of the prosecutor, an extended term is mandatory so long as "the defendant has the predicate prior convictions to qualify for enhanced sentencing." State v. Thomas, 188 N.J. 137, 149-50 (2006). The statute does not permit the court to engage in any additional fact finding or analysis. Id. at 150-51.
Nevertheless, before imposition of an extended term a defendant is entitled to notice.
The court shall not impose a sentence of imprisonment for an extended term unless the ground therefor has been established at a hearing after the conviction of the defendant and on written notice to him of the ground proposed. The defendant shall have the right to hear and controvert the evidence against him and to offer evidence upon the issue.
The notice must be sufficient to alert the defendant to the precise charge that he will have to face, the precise claim that is being made, the precise prior conviction that will be asserted that has the potential of vastly increasing the actual time he may have to spend in prison.
It not only gives defendant the chance to controvert the claim but it puts the procedure on the formal footing so necessary to assure its integrity and to assure the correctness of its outcome. [State v. Martin, 110 N.J. 10, 18 (1988).]
Rule 3:21-4(e) states that the notice must be by motion.
A motion pursuant to N.J.S.A. 2C:44-3 or N.J.S.A. 2C:43-6f for the imposition of an extended term of imprisonment . . . shall be filed with the court by the prosecutor within 14 days of the entry of defendant's guilty plea or of the return of the verdict. . . . For good cause shown the court may extend the time for filing the motion.
Here, the State's application for an extended term was not by motion, but rather it included: (1) an affidavit and (2) a judgment of conviction for defendant's 2000 conviction for possession of an imitation CDS with intent to distribute. The affidavit identified both defendant's 2000 conviction for possession with the intent to distribute imitation CDS and his 1991 conviction for distribution of CDS, and stated: "According to defendant's criminal history, he was convicted previously of possession of a controlled dangerous substance with the intent to distribute. The defendant is, therefore, a persistent offender pursuant to N.J.S.A. 2C:43-6f." Although the affidavit purported to attach judgments of both convictions, only the 2000 judgment of conviction was attached; and that conviction does not qualify defendant for an extended term under the statute.
The affidavit, therefore, was unclear because one of the two convictions listed, the conviction for possession with the intent to distribute imitation CDS, was not a predicate offense for an extended term under N.J.S.A. 2C:43-6f; and the attached judgment of conviction was for that conviction, not the predicate offense. The affidavit was also unclear because it said that defendant was subject to an extended term because he was convicted previously of "possession of a controlled dangerous substance with intent to distribute;" it was the distribution conviction, not the possession with intent to distribute imitation CDS, that constituted the predicate offense.
Nevertheless, the State's submission met most of the notice requirements of N.J.S.A. 2C:44-6(e). The affidavit indicated the relief being sought - sentencing defendant to an extended term under N.J.S.A. 2C:43-6f - and it included grounds upon which the relief was requested - defendant's convictions. The affidavit also contained a reference to the conviction that constituted a predicate offense, that is, the 1991 conviction for distribution of CDS. Under these circumstances, where the State made an effort to comply with the notice requirements of N.J.S.A. 2C:44-6(e), even though that effort was ineffectual, the appropriate remedy was not to simply deny the State's application, but to have the State clarify its application and provide defendant with an opportunity to respond.
N.J.S.A. 2C:43-6f was promulgated to deter repeat drug offenses. State v. Lagares, 127 N.J. 20, 23 (1992). The Attorney General's guidelines reflect the "legislative intent to make extended sentencing of repeat drug offenders the norm rather than the exception." Id. at 32. Thus, upon receiving an application by the State for an extended term, the court's discretion to reject that application is constrained, unless the State fails to establish grounds for the extended term by a preponderance of the evidence. Id. at 31; see also Thomas, supra, 188 N.J. at 149-51 (upon application of the prosecutor, an extended term is mandatory if defendant has requisite predicate prior convictions). Given the very narrow parameters within which a trial court may deny the State's motion for a mandatory extended term, rejecting the State's application under the circumstances presented here was a mistaken exercise of the trial court's discretion.
Defendant relies on Martin, supra, 110 N.J. 10, for the proposition that the State's application must be denied. We disagree. In Martin, the question was whether the defendant, upon conviction of a Graves Act offense, N.J.S.A. 2C:43-6, could be sentenced to an extended term without being first notified that the State was seeking an extended term and without being given a hearing on whether he had a prior predicate conviction. Id. at 12. The State failed to notify the defendant that it intended to seek an extended term until the sentencing date. Id. at 13. And on the sentencing date, the trial court refused to provide the defendant with a hearing on the issue. Ibid. This court held that no prior notice was necessary. Id. at 13-14. The Supreme Court reversed, and held that notice and a hearing were required before the court could impose a mandatory extended term for a Graves Act conviction. Id. at 14. The Court did not, however, hold that the State's application for an extended term was required to be denied for lack of that notice.
Instead, it remanded to the trial court to provide the defendant with a hearing "and such procedural rights as are appropriate in aid of whatever attempt [the defendant] may make to controvert the prosecutor's claim." Id. at 20.
Here, the State's actions were less egregious than those in Martin. The State timely filed an application for an extended term, but filed it as an affidavit, not a motion. Unlike in Martin, even though the notice was unclear, defendant was on notice prior to the sentencing date that the State was seeking an extended term. Under these circumstances, and given the mandatory nature of the extended term as expressed by the Legislature and the Supreme Court, see Thomas, supra, 188 N.J. at 149-51, and Lagares, supra, 127 N.J. at 28, the ultimate sanction of denying the State's application was not warranted.
In sum, we affirm defendant's judgment of conviction; we vacate defendant's sentence and remand to the trial court to consider the State's application for an extended term sentence. The trial court shall provide defendant with an opportunity to be heard as to why an extended mandatory prison term should not be imposed.
Affirmed in part, reversed in part, and remanded.
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